Editorial: Moody insults Floridians with argument against abortion initiative

The people who don’t want Floridians voting on abortion rights seem to fear that the Supreme Court would allow it. They’re the only ones pleading for oral argument on whether the question should be on the ballot next November.

The public deserves to be heard. But Attorney General Ashley Moody and her allies who oppose reproductive choice have twisted logic into knots to persuade Florida’s justices that voters won’t understand a proposed constitutional amendment that could be on the ballot in 2024. That takes the public, and the court, for fools.

Here’s what the initiative says: “Except as provided in Article X, Section 22, no law shall prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

It’s a yes or no question. The main fight, though, is over the ballot summary, which would not be in the Constitution. This is what it says:

“No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”

Moody and her allies are attacking what “viability” means, along with “health care provider” and “health” itself. She also claims the summary is defective for failing to mention that federal law still applies to very late-term abortions, which are vanishingly rare.

To reach voters, a ballot initiative must pass a two-pronged test. It can be removed only if the Supreme Court finds that the ballot summary or title would mislead voters or that the amendment deals with more than one subject.

A trap by Tallahassee

The ballot summary is limited to 75 words. That’s a trap set by the Legislature, which resents initiatives as defying its authority.

Moody, the elected “people’s lawyer,” doesn’t like initiatives very much. She opposed those dealing with marijuana, whether for medical or recreational use, as well as a ban on assault weapon that she persuaded justices to keep off the ballot.

State law requires Moody to submit initiatives for court approval when they have gathered a set number of signatures. She’s not required to oppose them, but has done so more conspicuously than any previous attorney general.

This case is separate from one already argued in which the court has to decide whether to approve Florida’s 15-week abortion ban, which would also automatically uphold the six-week ban the Legislature passed this year. Moody and the Legislature asked the court to rule that Florida’s constitutional right of privacy covers only information — not personal conduct.

The court’s suspected sympathy to that outrageous argument underlies the campaign for the abortion rights amendment. It would need 60% voter approval to pass, another unfair hurdle to democracy imposed by the Legislature. Ohio’s pro-choice amendment garnered “only” 56%, enough to become law.

A possible delay tactic

Moody’s plea for oral argument may involve more than simple misgivings over the meanings of “viability” and “health.” It’s more likely an effort to delay a ruling. That matters because Floridians Protecting Freedom, the initiative sponsor, has only until Feb. 1 to finish collecting the 891,523 valid signatures to make the ballot and it has submitted nearly 493,000 so far. Raising the money to get the remaining signatures could be harder with uncertainty lingering over a pending court decision.

With court filing deadlines having passed, justices could decide anytime, unless they choose to hear oral argument first.

In her final brief, Moody selectively misrepresented a position paper of the American College of Obstetricians and Gynecologists (ACOG). She claims that it reflects public confusion about the meaning of “viability.”

The group rebutted her sternly, saying that “viability” has been used by state and federal courts for decades, and is “widely understood by clinicians, courts and the public to mean the point in a pregnancy where a fetus may be expected to survive outside of the uterus.”

Their brief called it a “nuanced topic that is navigated by trained clinicians based on their experience, medical expertise, and informed judgment to help patients make informed decisions for their pregnancy … Unfortunately, the term viability is increasingly misrepresented in the current battles on abortion based on ideological principles rather than sound science or accurate medicine.”

Medicine, not ideology

Terminating a pregnancy is a medical issue between the woman and her caregivers. Ideological principles, as espoused by Moody and the anti-abortion groups backing her, have no rightful place in it.

Moody argues that if the court allows the amendment on the ballot, it should also reserve power to itself and to the Legislature to decide what “viability” and other terms mean. That would eviscerate the amendment.

The final filings included a brief in support of the initiative by 10 former Republican elected officials, including former Lt. Gov. Jennifer Carroll and former state senators Dennis Jones and Paula Dockery.

“Floridians themselves should decide directly what the political branches are permitted to do in this area,” their brief said.

What the initiative proposes is perfectly understandable. There’s nothing misleading about it. It would be a miscarriage of justice for the court to block it from the ballot and an insult to the intelligence and sovereignty of the people of Florida.

The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoints Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Anderson. Send letters to insight@orlandosentinel.com.